Walsh Construction Company v. Chicago Explosive Services, LLC et al

Filing 73

OPINION AND ORDER: Court GRANTS 69 Motion for Enlargement of Time to Respond to Chicago Explosive Services, LLC's Motion to Dismiss, for Leave to Conduct Discovery Related to the Issue of Subject Matter Jurisdiction and to Vacate Current Dis covery Deadlines. All discovery not related to subject matter jurisdiction is STAYED; the current discovery schedule is VACATED; Walsh may depose Pat Carney regarding Carney's domicile and citizenship by 8/8/2016; the deposition of Carney will take place in Chicago or northwest Indiana; Walsh's deadline to file a response is EXTENDED to 8/22/2016; and Walsh may serve on CES the proposed discovery attached to the instant Motion as Exhibits 13 and 14. Signed by Magistrate Judge Paul R Cherry on 6/28/2016. (tc)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
WALSH CONSTRUCTION COMPANY,
Plaintiff,
v.
CHICAGO EXPLOSIVE SERVICES, LLC,
and PMG INDUSTRIAL, LLC,
Defendants.

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CAUSE NO.: 2:14-CV-84-RL-PRC

OPINION AND ORDER
This matter is before the Court on Plaintiff’s Motion for Enlargement of Time to Respond
to Chicago Explosive Services, LLC’s Motion to Dismiss, for Leave to Conduct Discovery Related
to the Issue of Subject Matter Jurisdiction and to Vacate Current Discovery Deadlines [DE 69], filed
by Plaintiff Walsh Construction Company (“Walsh”) on June 8, 2016. Defendant Chicago Explosive
Services, LLC (“CES”) filed a response on June 16, 2016, and Walsh filed a reply on June 21, 2016.
The citizenship of one of CES’s members, Pat Carney, is in dispute. CES contends that
Carney is a citizen of Illinois. Based on that contention, CES has filed a pending Motion to Dismiss
for lack of subject matter jurisdiction asserting that there can be no federal jurisdiction based on
diversity. Walsh argues that the parties are diverse because Carney is a citizen of Florida.
In order to prepare a response to the Motion to Dismiss, Walsh requests that the Court (1)
stay all discovery not related to subject matter jurisdiction, (2) vacate the current discovery schedule,
(3) grant leave for Walsh to depose Carney regarding his citizenship and domicile within 60 days,
(4) order that Mr. Carney’s deposition occur in Chicago or northwest Indiana, (5) grant Walsh up
to and including August 22, 2016 to file its response to CES’s pending Motion to Dismiss, and (6)
grant leave for Walsh to issue the proposed discovery requests related to Carney’s citizenship that
Walsh attached to the instant Motion.
CES does not object to the Court staying unrelated discovery and vacating the discovery

schedule or to the deposition of Carney occurring within 60 days. Thus, the Court grants these
requests.
Regarding the location for the deposition of Carney, Walsh represents in its Motion that CES
would not commit to a deposition in Chicago, but CES does not object in its response to the
deposition taking place in Chicago or northwest Indiana. Therefore, this request is granted.
Next, the Court addresses the request for an extension of time to respond to CES’s Motion
to Dismiss. CES argues that an extension to August 22, 2016, is unnecessarily long. Walsh’s
requested date is two weeks after the agreed upon deadline of August 8, 2016, to depose Carney.
CES argues that it can produce Carney within 30 days, and, thus, a shorter extension would be
adequate. However, the deadline for the deposition remains August 8, 2016, and though the
deponent might be available before that date, his availability must be coordinated with the
availability of the parties’ counsel. Allowing two weeks after the deposition deadline for counsel
to draft Walsh’s response is not unreasonable, and there is good cause for this extension of time. The
Court grants this request.
Lastly, the parties disagree whether Walsh should be allowed to serve written discovery
requests on CES regarding Carney’s citizenship. CES argues that the discovery should not be
allowed because (1) the issue of Carney’s citizenship can be resolved without the discovery via
Carney’s affidavit already provided to Walsh, (2) the proposed discovery would exceed the number
of interrogatories allowed under the Federal Rules of Civil Procedure, and (3) the deposition of
Carney should be sufficient. CES also argues that, if written discovery is permitted, the discovery
must be “non-duplicative, narrowly drawn, and very specific to only those relevant factors which
Courts have utilized to determine citizenship for purposes of subject matter jurisdiction.” (Resp. 4).
The Court will first address CES’s arguments that no written discovery should be allowed and then

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address CES’s objections to the proposed written discovery.
First, though Carney has provided an affidavit regarding his citizenship, Walsh’s request for
written discovery despite the affidavit is reasonable, especially in light of the conflicting information
it has received from CES. CES’s Answer indicated that all of its members are citizens of
Indiana—CES explains that at the time of filing the Answer, it did not believe Carney to be a
member—and CES originally insisted that Carney’s deposition regarding the merits of the case take
place in Florida. Many factors play a part in the citizenship analysis, Ner Tamid Congregation of
N. Town v. Krivoruchko, 620 F. Supp 2d 924, 931-32 (N.D. Ill. 2009) (citing State Farm Mut. Auto
Ins. Co. v. Dyer, 19 F.3d 513, 520 (10th Cir. 1994)), and Walsh should have an opportunity to gain
information on these factors. See, e.g., Lester-Washington v. Wal-Mart Stores, Inc., 11-CV-0568,
2011 WL 4738529, at *2-3 (S.D. Ill. Oct 7, 2011) (allowing “reasonable discovery” on the issue of
subject matter jurisdiction); Parkside Medical Services Corp. v. Lincold West Hosp., Inc., 89 C
2233, 1989 WL 75430, at *1 (N.D. Ill. ) (same).
Next, CES argues that the discovery would exceed the limit set forth in the Federal Rules
of Civil Procedure. Though CES identifies the twenty-five interrogatory limit contained in Rule 33,
the report of the parties’ Rule 26(f) planning meeting lists an agreement to limit each side to thirty
interrogatories. Further, the Court has discretion to “alter the limits in [the federal rules] on the
number of . . . interrogatories.” Fed. R. Civ. P. 26(b)(2)(A). CES represents that Walsh has already
served twenty-two interrogatories on CES. Walsh requests permission to serve seventeen
interrogatories regarding Carney’s citizenship. Given that Walsh was not on notice when serving
its previous interrogatories that it would need to inquire into matters for diversity jurisdiction,
holding Walsh to the agreed upon limit would be unjust. The Court has the discretion to allow
reasonable discovery into the issue, even if the previously agreed upon interrogatory limit is

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exceeded.
CES also contends that the deposition of Carney should be sufficient. The Court does not
find this to be a persuasive reason to prohibit the written discovery. The Federal Rules do not require
litigants to use depositions instead of interrogatories where possible. The Court will allow Walsh
to serve reasonable written discovery on CES.
The Court now turns to CES’s arguments that the proposed written discovery is improper
because it is duplicative, not narrowly drawn, and irrelevant. CES identifies five interrogatories and
six requests for production that it deems irrelevant. However, the Court agrees with Walsh that most
of the proposed written discovery matches factors discussed by the court in Ner Tamid, 620 F. Supp.
2d at 931, 933 (including voter registration, place of employment, location of real and personal
property, time spent at each residence, tax payments, and location of financial accounts as
appropriate factors for consideration). Other information sought in the written discovery, such as
Carney’s professional licenses and hunting or fishing licenses, have also been considered by courts
in this circuit. See Wat Buddha-Dhamma, N.F.P. v. Stang, 09-CV-7593, 2010 WL 3210586, at *1
(N.D. Ill. Aug. 12, 2010) (professional licenses) LRJ, Inc. v. Edwards, 95 C 50083, 1996 WL
417501, at *4 (N.D. Ill. July 11, 1996) (hunting and fishing licenses). All of the discovery requests
CES identifies as irrelevant have been considered in determining a party’s citizenship for the
purpose of subject matter jurisdiction. The Court finds that these requests are not irrelevant.
CES’s argument that the “subject matters” for the interrogatories cannot be addressed at the
deposition because doing so would be duplicative is not pursuasive. Federal Rule of Civil Procedure
26 prohibits “unreasonably cumulative or duplicative” discovery, not merely “duplicative
discovery.” Fed. R. Civ. P. 26(b)(2)(C)(i). It is possible that an answer given to an interrogatory may
need clarification or more detail. Given the conflicting information Walsh has received to date in

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this litigation regarding Carney’s domicile, the Court cannot prospectively determine that any
overlap in subject matter that may arise will be unreasonably cumulative or duplicative. Any
objections that may arise during the deposition will be resolved through the procedures set forth in
Federal Rule of Civil Procedure 30.
Based on the foregoing, the Court hereby GRANTS Plaintiff’s Motion for Enlargement of
Time to Respond to Chicago Explosive Services, LLC’s Motion to Dismiss, for Leave to Conduct
Discovery Related to the Issue of Subject Matter Jurisdiction and to Vacate Current Discovery
Deadlines [DE 69] and ORDERS:
(1)

All discovery not related to subject matter jurisdiction is STAYED;

(2)

The current discovery schedule is VACATED;

(3)

Walsh may depose Pat Carney regarding Carney’s domicile and citizenship on or
before August 8, 2016;

(4)

The deposition of Carney will take place in Chicago or northwest Indiana;

(5)

Walsh’s deadline to file a response to CES’s pending Motion to Dismiss is
EXTENDED to August 22, 2016; and

(6)

Walsh may serve on CES the proposed discovery attached to the instant Motion as
Exhibits 13 and 14.

SO ORDERED this 28th day of June, 2016.
s/ Paul R. Cherry
MAGISTRATE JUDGE PAUL R. CHERRY
UNITED STATES DISTRICT COURT

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